Re Frederick Gordon Hatty v Stuart Hearne Pilkinton [1991] FCA 139; 99 ALR 695 28 FCR 352 (15 April 1991)

FEDERAL COURT OF AUSTRALIA

Re: FREDERICK GORDON HATTY
And: STUART HEARNE PILKINTON
No. ACT G41 of 1990
FED No. 173
Courts and Judges
[1991] FCA 139; 99 ALR 695
28 FCR 352

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Neaves(1) and Spender(1) JJ.

CATCHWORDS

Courts and Judges - Federal Court of Australia - appeal - jurisdiction to entertain appeal from a judgment of an intermediate appellate court setting aside a conviction for a criminal offence tried summarily and substituting a judgment of acquittal.

Federal Court of Australia Act 1976 (Cth), ss.24, 28

Australian Capital Territory Supreme Court Act 1933 (Cth), s.11

Magistrates Court Act 1930 (A.C.T.), ss.207, 208, 214, 218

HEARING

CANBERRA
15:4:1991

Counsel for the appellant : Mr G. Morrish, QC and Mr R. Webster

Solicitors for the appellant : Director of Public Prosecutions

Counsel for the respondent : Mr T.E.F. Hughes, QC and Mr S.F.C. Wilcox

Solicitors for the respondent: Abbott Tout Russell Kennedy

ORDER

1. Orders that the motion as to the competency of the appeal herein notice of which was given on 5 April 1991 be dismissed.

2. Reserves the question of the costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

On 29 January 1990 the respondent, Stuart Hearne Pilkinton, was convicted in the Magistrates Court of the Australian Capital Territory of the common law offence of attempting to pervert the course of justice, a penalty of a fine of $400 being imposed. From that conviction and sentence the respondent appealed to the Supreme Court of the Australian Capital Territory, the respondent to that appeal being Frederick Gordon Hatty, the present appellant. The appeal was conducted on the transcript of the oral evidence and on the documentary material that had been before the Magistrates Court; no additional evidence was placed before the Supreme Court. On 23 July 1990, the Supreme Court set aside the conviction and entered in its place a judgment of acquittal. The respondent was accordingly discharged in respect of the alleged offence. A notice of appeal to this Court from the whole of the judgment of the Supreme Court was filed on 9 August 1990. The notice of appeal seeks orders that the decision of the Supreme Court be set aside "and the conviction of the respondent (appellant) by the Magistrate and the sentence imposed be restored".

2. By notice of motion dated 5 April 1991, the respondent gave notice that, when the appeal was called on for hearing, the Court would be moved, pursuant to Order 52, rule 18 of the Federal Court Rules, for an order dismissing the appeal as incompetent. Argument on the motion was heard on 8 April 1991. The Court reserved its decision on the motion and proceeded to hear argument on the substantive appeal. That argument has not been concluded but the Court is in a position to give judgment on the motion which it now proceeds to do.

3. The ground upon which it is submitted that the appeal is incompetent is that the Supreme Court entered the judgment of acquittal after a hearing on the merits and that, in such circumstances, no appeal lies to this Court from the judgment so entered. The contention that the appeal is incompetent is opposed by the appellant on the ground that, while ss.24 and 28 of the Federal Court of Australia Act 1976 (Cth) do not empower this Court to entertain an appeal from a judgment of acquittal entered at first instance, the position is different where the judgment of acquittal is entered by an intermediate appellate court consequent upon the setting aside, at the suit of the convicted person, of his conviction by a court of first instance. Both parties contend that the issue is resolved in their favour by what was said by the Justices of the High Court who formed the majority in Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21. It is, therefore, necessary to examine that decision in some detail but, before doing so, reference should be made to relevant statutory provisions.

4. It is common ground between the parties that the provisions of s.477 of the Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory ("the Crimes Act") empowered the Magistrates Court to hear and determine summarily the charge laid against the respondent.

5. The jurisdiction of the Supreme Court to entertain the appeal by the respondent against his conviction and sentence had its foundation in s.11 of the Australian Capital Territory Supreme Court Act 1933 (Cth) and Part XI of the Magistrates Court Act 1930 (A.C.T.).

6. Section 11 of the Australian Capital Territory Supreme Court Act provides, inter alia, that the Supreme Court has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance or enactment, to hear and determine appeals from all judgments, convictions, orders and sentences of inferior courts having jurisdiction in the Territory.

7. Sections 207, 208, 214 and 218 of the Magistrates Court Act are within Part XI of that Act. Section 207(1) provides:

"(1) The appellate jurisdiction of the Supreme Court with
respect to decisions of the Magistrates Court under this Ordinance
extends to the hearing and determination of the following appeals
and to no others, namely:
(a) appeals to which Division 2 of this Part applies; and
(b) appeals from decisions of the Magistrates Court by way
of orders to review made in accordance with Division 3
of this Part."

By virtue of s.208(1)(a), Division 2 of Part XI applies to an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under s.477 of the Crimes Act. Section 214 applies to such an appeal. It provides, inter alia, that, in hearing the appeal, the Supreme Court is to have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact (s.214(2)). The Court may, if it thinks it necessary or expedient to do so in the interests of justice, or if the parties consent, receive further evidence (s.214(3)). Section 218(1) provides:

"(1) On an appeal to which this Division applies, the
Supreme Court may -
(a) affirm, reverse or vary the conviction, order,
sentence, penalty or decision appealed from;
(b) give such judgment, or make such order, as, in all the
circumstances, it thinks fit, or refuse to make an
order; or
(c) set aside the conviction, order, sentence, penalty or
decision appealed from, in whole or in part, and remit
the proceedings to the Magistrates Court for further
hearing and determination, subject to such directions
as the Supreme Court thinks fit."

8. Section 24(1) of the Federal Court of Australia Act confers jurisdiction on this Court to hear and determine appeals from judgments of the Supreme Court of a Territory. Section 28(1) of that Act provides:

"(1) Subject to any other Act, the Court may, in the
exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the
circumstances, it thinks fit, or refuse to make an
order;
(c) set aside the judgment appealed from, in whole or in
part, and remit the proceeding to the court from which
the appeal was brought for further hearing and
determination, subject to such directions as the Court
thinks fit;
(d) set aside a verdict or finding of a jury in a civil
proceeding, and enter judgment notwithstanding any
such verdict or finding;
(e) set aside the verdict and judgment in a trial on
indictment and order a verdict of not guilty or other
appropriate verdict to be entered;
(f) grant a new trial in any case in which there has been
a trial, either with or without a jury, on any ground
upon which it is appropriate to grant a new trial; or
(g) award execution from the Court or, in the case of an
appeal from another court, award execution from the
Court or remit the cause to that other court, or to a
court from which a previous appeal was brought, for
the execution of the judgment of the Court."

9. In Davern v. Messel, supra, the High Court had before it two applications for special leave to appeal. The first of those applications raised for the Court's consideration the question whether this Court "is competent to entertain an appeal from a judgment of a judge of the Supreme Court of a Territory quashing a conviction imposed by a magistrate for an offence against the law of the territory". The matter arose in this way. The respondent, Professor Messel, after a hearing before the Chief Stipendiary Magistrate of the Northern Territory, was convicted of certain offences related to the taking of fish and wild life and ordered to pay certain fines. He appealed from those convictions and orders to the Supreme Court of the Northern Territory which directed that the appeal be heard as a rehearing, not on the material before the Chief Stipendiary Magistrate, but on viva voce evidence placed before the Supreme Court by the complainant. After a good deal of evidence had been called, but before the complainant's case had been closed, it was agreed between the parties that they should argue a number of questions of law which, if decided against the complainant, would be determinative of the appeals. The Supreme Court concurred in this course and, after hearing argument, decided those questions adversely to the complainant, allowed the appeals and quashed the convictions.

10. The complainant appealed to this Court which, by majority, upheld an objection to the competency of the appeal. The complainant then applied to the High Court for special leave to appeal from the decision of this Court.

11. The High Court, by majority, Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ., Murphy and Deane JJ. dissenting, granted special leave to appeal, allowed the appeal and remitted the matter to this Court to proceed in accordance with the majority judgment.

12. The joint reasons for judgment of Mason and Brennan JJ. provide no support for the contention that the present appeal is incompetent. At pp 55-6, their Honours said:

"The powerful considerations which made it unfair and unjust
that a man should be prosecuted twice for the same offence
seem to lose some of their force when an appeal is sought to
be equated with a second prosecution. A second prosecution
for the same offence immediately raises the spectre of
persecution. Although the pursuit of a Crown appeal might
be carried to the point of persecution, the risk of that
occurrence is more remote, if only because the accused would
be protected by the courts against an appeal which was
instituted mala fides or amounted to an abuse of process
and, as already noted, the courts would not go behind a
jury's verdict. Moreover, the Crown has a legitimate
interest in securing a review of a trial, more particularly
if it appears that the trial judge has made an erroneous
ruling on a question of law or departed from correct procedures.
However, the body of authority to which we have referred is
altogether too strong to justify its overthrow. Indeed, the
introduction of legislative provisions in many States
authorizing Crown appeals on questions of law on the footing
that the decision of the Court of Criminal Appeal will leave
the acquittal undisturbed makes it impossible now for us to
say that the rule against doubt jeopardy does not extend to
an appeal. And once that is accepted it is difficult, if
not impossible, to challenge the foundation on which the
principle of interpretation is based. Accordingly, we
conclude that Mastertouch was rightly decided.
The question then is whether the principle extends to deny
an appeal by the Crown from a judgment of acquittal by a
court of criminal appeal following a successful appeal by
the accused against his conviction at first instance."

The reference to "Mastertouch" is, of course, a reference to Thompson v. Mastertouch T.V. Service Pty Ltd (No.3) [1978] FCA 24; (1978) 19 ALR 547. Later, at p 59 of the report, their Honours said:

"Traditionally it has been thought that unfairness and
injustice may result to a defendant from the reversal of an
acquittal obtained at first instance but it is difficult to
see how these considerations can apply to the quashing of an
order reversing a conviction which has already been obtained."

Following a reference to the approach taken by the Supreme Court of the United States, their Honours continued (at pp 60-61):

"The fundamental question, however, as it seems to us, is
whether once the defendant appeals from a conviction at
first instance, thereby setting the appellate process in
motion, it is legitimate for the prosecutor by recourse to
the same process to have an error on the part of the first
appellate court corrected. As Friedland comments, at p 293,
once the case is in the appellate hierarchy there is no
legitimate reason why the matter should not be determined by
the higher court. The exercise, on proper occasions, of the
further appellate jurisdiction is important to ensure the
due administration of justice in the individual case as well
as for the general administration of the criminal law
(Bertrana (1867) LR 1 PC, at p 530).
And it is of some significance that in Australia courts of
criminal appeal for over half a century have exercised the
power to order a new trial on an appeal by a defendant from
a verdict of conviction with the consequence that a new
trial pursuant to such an order constitutes no violation of
the rule against double jeopardy. This circumstance is a
relevant consideration in determining whether the concept of
double jeopardy as it has developed in this country extends
to a new trial ordered by a second appellate court on appeal
from a first appellate court when it erroneously entered a
judgment of acquittal instead of ordering a new trial."

13. Their Honours placed no reliance on the circumstance that the quashing of the convictions by the Supreme Court of the Northern Territory was founded upon an erroneous view of the relevant law. There is nothing in their Honours' reasoning to suggest that their conclusion depended upon an examination of the question whether the hearing before the intermediate appellate court might properly be described as a hearing "on the merits". Mr Hughes QC, senior counsel for the respondent, submits, however, that the reasoning of Gibbs C.J. (in whose judgment Wilson and Dawson JJ. concurred) demonstrates that those matters are of critical importance in determining the competence of an appeal such as that now before this Court. To support this submission he refers to a number of passages in the reasons for judgment of Gibbs C.J.

14. At pp 30-1, Gibbs C.J. said:

"When the prosecution seeks to appeal from an
acquittal, the rule against double jeopardy has an indirect
application. An appeal is a remedy given by statute; the
scope of the appeal must be governed by the terms of the
enactment creating it: Commissioner for Railways (N.S.W.)
v. Cavanough [1935] HCA 45; (1935) 53 CLR 220, at p 225. The question
whether an appeal lies from an acquittal therefore must be
decided as a matter of statutory interpretation. However it
is a principle of interpretation that no statute will be
construed as abrogating a fundamental principle of the
common law unless an intention to do so is clearly
expressed. The view has been taken that the common law rule
against double jeopardy would be infringed by allowing an
appeal from an acquittal, since the rule requires that an
acquittal be treated as final."

After referring to Benson v. Northern Ireland Road Transport Board (1942) AC 520 at p 526 and to certain decisions said to be inconsistent with it, Gibbs C.J. continued at pp 32-3:

"Notwithstanding these decisions, there is in my opinion no
sufficient reason to question the rule, laid down in Benson
v. Northern Ireland Road Transport Board, that a statute
will not be understood to confer a right of appeal from a
decision dismissing a criminal charge unless it does so
distinctly. It is a rule to which it may be assumed the
parliamentary draftsmen have had regard in framing
legislation enacted since that time. The rule was in my
opinion correctly applied in Thompson v. Mastertouch T.V.
Service Pty Ltd (No.3) (1978) 38 FLR 397; 19 ALR 547.
Section 24 of the Federal Court of Australia Act is quite
general in its terms. The provisions of s.28(1)(e) indicate
that the court on appeal would have no power to order a
verdict of guilty to be entered and therefore no power to
set aside a verdict of not guilty. It is unlikely that the
draftsman, having specifically referred to a verdict of not
guilty, would have intended that a verdict of guilty should
be embraced by the general words 'or other appropriate
verdict', and those words have a further function to fulfil
even if they do not refer to a verdict of guilty, as Deane
J. pointed out in Thompson v. Mastertouch T.V. Service Pty
Ltd (No.3) (1979) 38 FLR at p 410; 19 ALR at p 558.
The general words of s.28(1)(f) cannot be understood as
intended to give power to order a new trial after a verdict
of not guilty has been entered. This view is strengthened
by the contrast between the general words of these
provisions and the express terms of s.28(5) which recognize
that the Crown has a right to appeal against sentence. If
Mastertouch is wrong, it would seem to follow that s.24
would give an unqualified right of appeal to the Federal
Court from a judgment of acquittal based on a jury's finding
of not guilty: see per Deane J. (1978) 38 FLR, at p 408;
19 ALR, at p 556; that would be an unprecedented
legislative innovation, at least in England or Australia. I
accordingly respectfully agree with the conclusion of Deane
J. in Thompson v. Mastertouch T.V. Service Pty Ltd (No.3)
that the general words of s.24 do not affect the right of
the subject to be spared the jeopardy of an appeal from an
acquittal after a hearing on the merits of a criminal charge
by a court of competent jurisdiction (1978) 38 FLR, at
pp 401, 403-404, 412-413; 19 ALR at pp 550, 552, 560.
Room may remain for argument on the question when a hearing
is not one on the merits, but that question raises no
difficulty in the present case.
To approve of the decision in Thompson v. Mastertouch T.V.
Service Pty Ltd is not, however, to resolve the present
question, since, as I have said, that decision dealt with
the case of an appeal brought directly from an acquittal.
We are now concerned with the case of an appeal brought from
a decision given on an appeal from a conviction. The
question is whether, in such a case, the general words of
the statute permitting the second appeal should not be
understood to confer on the ultimate appellate court power
to correct a patent error of law which has been committed by
the first court of appeal. I can see no reason in principle
or authority why in such a case the general provisions of
the statute should be given a restricted meaning."

15. His Honour identified (at p 33) the question for determination as being whether the rule against double jeopardy has any application when the accused has been convicted and has himself invoked the appellate procedure. His Honour then said:

"It seems to me neither unfair nor oppressive to restore a
conviction that was set aside on erroneous legal grounds."

After examining relevant authorities, his Honour said (at p 40):

"The authorities favour the view which in my opinion accords
with commonsense and the interests of justice, that if a
convicted person secures the quashing of a conviction on an
erroneous legal ground, a further appellate court has the
power to correct the error of law and to restore the
conviction which should never have been disturbed.
There can be no doubt that under s.24 of the Federal Court
of Australia Act the Federal Court is competent to hear and
determine an appeal from a decision of the Supreme Court of
the Northern Territory given on an appeal under the Justices
Act (N.T.) affirming a conviction. There is in my opinion
no reason why it cannot also hear and determine an appeal
from a decision given by that Supreme Court quashing a
conviction. The fact that Gallop J. conducted the appeal as
a rehearing does not affect the position. The appeal given
by the Justices Act (N.T.) is not either an appeal to
quarter sessions or the successor of or modern equivalent to
such an appeal, and if quarter sessions appeals occupy a
special position, that does not affect the present question.
In any case, the appeal was not from a judgment given on a
rehearing, because Gallop J. had not completed the taking of
the evidence; he made no adjudication on the facts and his
decision was entirely of questions of law.
For these reasons I hold that the Federal Court had
jurisdiction to entertain the present appeal and that the
objection to competency was wrongly allowed."

16. Mr Hughes submits that Gibbs C.J. reached the conclusion that the appeal to this Court was competent only because the decision of the Supreme Court of the Northern Territory was not an adjudication on the facts but only upon questions of law. We are unable to accept this submission. It is clear from the passage last cited from his Honour's judgment that that circumstance was not the decisive factor but an additional circumstance supporting the conclusion that the appeal to this Court was competent. We think it follows clearly from what his Honour said that, even had the Supreme Court completed the hearing on which it had embarked and at the conclusion of that hearing quashed the convictions on any grounds, s.24 of the Federal Court of Australia Act would have operated to permit an appeal to be brought to this Court.

17. Mr Hughes relied upon the statement by Gibbs C.J. at pp 32-3 that the provisions of s.28(1)(e) of the Federal Court of Australia Act indicate that this Court would have no power to order a verdict of guilty to be entered and, therefore, no power to set aside a verdict of not guilty. His Honour's statement was clearly directed to the different situation where the verdict of not guilty is entered at first instance. His Honour was not, in that statement, dealing with the issue that arises in this case.

18. The conclusion we have reached makes it unnecessary to consider the nature of the appeal to the Supreme Court of the Australian Capital Territory for which ss.207, 208, 214 and 218 of the Magistrates Court Act provide (a matter discussed in Petreski v. Cargill (1987) 18 FCR 68) save to observe that that appeal is not an appeal by way of hearing de novo or otherwise an appeal which could be described as the equivalent of a quarter sessions appeal. It is also unnecessary to consider the question whether the hearing which took place before that Court is properly to be described as a hearing "on the merits".

19. The objection to competency is, therefore, dismissed. The Court will hear the parties on the question of the costs of the motion notice of which was given on 5 April 1991.